Jeff Weinberger to Argue Major Antitrust Case at U.S. Supreme Court

Munger, Tolles & Olson partner Jeffrey I. Weinberger will argue before the U.S. Supreme Court on March 25 in a major antitrust case addressing a split in the circuits over whether certain patent settlements between brand-name pharmaceutical companies and generic drug manufacturers violate the antitrust laws. Munger Tolles represents Solvay Pharmaceuticals, which was victorious at the appellate level in a challenge by the Federal Trade Commission (FTC) to so-called “reverse-payment” settlement agreements, leading The AmLaw Litigation Daily to name Mr. Weinberger a “Litigator of the Week” for his argument. The case is Federal Trade Commission v. Actavis, Inc.

The FTC alleges that Solvay, which was acquired by long-time Munger Tolles client AbbVie Inc. (formerly Abbott Laboratories), entered into anticompetitive patent litigation settlements with Watson Pharmaceuticals (now known as Actavis) and other generic drug makers to delay the introduction of a generic version of its blockbuster testosterone-replacement drug AndroGel. After Watson and another rival generic manufacturer developed a low-cost generic, Solvay sued under the Hatch-Waxman Act for infringement of its patent, which expires in 2020. The cases settled when the rival generic manufacturers agreed to help Solvay market AndroGel and then launch their own generic versions in 2015. The FTC claims that the settlements, called “reverse-payment” agreements because the patent holder provided “consideration” to the accused infringers, hurt consumers despite the fact that generic versions of the drug will still be manufactured long before the patent expires.

Last year, in Mr. Weinberger’s case, the 11th Circuit affirmed a lower court ruling dismissing the FTC’s antitrust complaint against Solvay and the generic manufacturers. Applying the “scope-of-the-patent” test, the court ruled that the agreements did not exceed the boundaries of the patent and found no antitrust violation.

While the Second and Federal Circuits also have applied the “scope-of-the-patent” test and upheld reverse-payment agreements, the Third Circuit applied a “quick-look rule of reason” test in the K-Dur case and concluded that reverse-payment agreements are “prima facie evidence of an unreasonable restraint of trade.”